Sexual Assault and Incest

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The topics in the Dial-A-Law series provide general information on a wide variety of legal issues in the Province of Alberta. This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation.

This topic will discuss the various forms of sexual assault and sexual offences under the Criminal Code of Canada.

All acts which are of a sexual nature and are committed without the consent of the complainant are crimes of sexual assault. The offender’s act must objectively appear to violate the sexual integrity of the victim. To determine whether conduct is sexual, a trial judge will often consider the part of the body touched the nature of the contact, and all other surrounding circumstances. Contact or penetration with the genital organs is not necessary to secure a sexual assault conviction. Forced anal, oral intercourse or bestiality is also considered sexual assault. Husbands and wives who force sexual acts upon their spouses may be charged with sexual assault, regardless of whether they are living together or not.

Consent often arises as an issue within many sexual assault cases. Consent is not obtained where there is extortion by force, threat or fear of bodily harm, fraud or if the victim is incapacitated mentally, psychologically or due to age. There is no lawful consent if it is induced through an abuse of a position of trust, power or authority. Thus, when a teacher, parent or guardian uses their power and influence to engage in sexual activity with a child or other vulnerable individual, they could be convicted of sexual assault even if the activity was not forced. If the accused has a defense that the complainant consented to the conduct, the Court must be convinced that the belief of the accused was honestly and reasonably held. This defense is not available in the cases where a child or vulnerable person has been sexually assaulted.

Sexual assaults of the most serious nature are known as aggravated sexual assault. This offence is committed when an offender who in the context of committing a sexual assault wounds, maims, disfigures or endangers the life of the complainant. If convicted of this offence, you could potentially receive a life imprisonment sentence; those who commit aggravated sexual assault with a firearm, face a minimum sentence of 4 yrs in prison and a maximum of life imprisonment. In addition to proving the above mentioned elements of sexual assault, the crown must also prove that your actions, objectively viewed, were likely to produce harm to the victim.

The second form of sexual assault is sexual assault with a weapon or causing bodily harm. If convicted, you could face a maximum prison term of 14 years. Like its’ more aggravated form, those who commit this offence with a firearm will be presented with a minimum of 4 years in prison or a maximum of 14 years in prison. It is not necessary for the crown to prove that you intended to kill the complainant. Showing that the conduct, objectively viewed, was likely to cause bodily harm will be enough. Similarly, with respect to sexual assault with a weapon it is only necessary for the crown to prove that the weapon was used for the purposes of intimidating or threatening your victim into complying with the assault.

Those who commit sexual assaults without using a weapon, inflicting bodily harm or jeopardizing the lives of their victims in any form will likely be charged under section 271 of the Criminal Code. Those charged under this section may be prosecuted summarily (crime of a less serious nature) or with the more serious, indictable form. The crown will likely make their decision based on the seriousness of the sexual assault. A “stolen kiss” may be considered a minor sexual assault. Sexual intercourse without consent is considered a serious offence. A summary conviction could wield a maximum punishment of $2,000 in fines, 18 months in prison or a combination of the two, while the indictable offence may impose a prison sentence not exceeding 10 years.

Incest is a sexual assault by a parent, child, brother, sister (including half siblings), grandparent or grandchild. In order to be convicted of incest it must be proven that sexual intercourse between the defendant and blood relative occurred. It must also be proven that the defendant knew of the blood relation and that the sexual intercourse was intentional. If the accused was under restraint, duress or fear of the person with whom they had intercourse with, they will not be found guilty of the offence. Incest is an indictable offence and if convicted could result in a prison sentence not exceeding 14 years in length.

Sexual exploitation is an offence involving a child and someone in a position of trust or authority. Trust or authority positions include financial dependency, baby-sitters, parents, guardians, uncles, relatives, cousins, employers, workmates and so on. Anyone interfering with the body of a child under the age of 16 years for a sexual purpose or who invites a child under the age of 16 years to touch sexually the body of a person in an authority position commits the offence of sexual interference and invitation to touching. Children under the age of 16 years cannot consent to being sexually molested. Children who are dependent upon adults in a position of authority also cannot give consent to sexual molestation. The offence of sexual exploitation can be prosecuted as an indictable or summary offence. If you are charged with the indictable form, you could face up to 10 years in prison. If you are charged with the summary form of the offence then you could face a maximum of 18 months in prison.

If you are charged with any of the above mentioned forms of sexual assault laid out in the Criminal Code, you will need a lawyer.

Victims who complain of sexual assault are now protected by the Criminal Code in matters which may cause embarrassment or prevent victims from coming forward. For example, victims may not be asked questions about their sexual activities with persons other than the accused or about their sexual reputation or character in general. There are some exceptions, but the victims must be given notice of the exception before they are required to testify. There is no limit on the amount of time that may pass between a sexual assault and the prosecution for that crime. Complaints alleging sexual assault often are made after a long time and sometimes many years after the event in question.